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‘Reverse’ Sexual Harassment Case Against Walmart Proceeds

By
Davis & Davis, P.C.
|September 12, 2011

In Perez -Cordero v. Walmart Puerto Rico, Inc. et al., the U.S. District Court for the District of Puerto Rico granted summary judgment, thereby dismissing a sexual harassment claim brought against Wal-Mart. The male plaintiff alleged that his female supervisor subjected him to unwelcomed physical touching, overt physical and verbal sexual advances, embarrassing sexual remarks, public scolding, exclusion from meetings and trainings, threats of discipline and poor performance reviews, scrupulous examining of his work and the assignment of less desirable tasks. The 1st Circuit Court of Appeals overturned the lower court’s decision in favor of the male employee.

Despite the barrage of constant and varying harassment and retaliation, the plaintiff continued to do his job well despite the fact that he was suffering severe emotional distress at the hands of Santiago. In their argument, Wal-Mart attempted to use the plaintiff’s perseverance against him. Wal-Mart argued that the boss’ behavior could not have been severe and pervasive if the plaintiff was still doing his job well. In support of their position, Walmart argued that during the time of the alleged harassment Perez-Cordero turned down a promotion, received pay for unused vacation time, and received positive performance reviews. The 1st Circuit found that those factors did not indicate that Santiago’s behavior was not severe and pervasive as to affect the day to day work conditions.

In fact, the 1st Circuit is unwilling to find Perez-Cordero’s perseverance at his job, despite the daily sexual harassment and retaliation he was subjected to and the distress it caused him, as a negative. Rather, the court declared that in order for sexual harassment to be severe and pervasive so as to alter the terms and conditions of employment an employee is not required to falter as a result of the environment. If the court had found otherwise it would essentially be punishing an employee for their unwillingness to buckle under the pressure of their tormenter; thereby requiring an employee to fail at work before a claim would become actionable. The 1st Circuit also reversed the District Court on the dismissal of Perez-Cordero’s retaliation claim. The Court found that the record showed enough evidence that as a result of Perez-Cordero’s complaints the discriminatory harassment continued to increase. The fact that some of this evidence is also applicable to Perez-Cordero’s claim of hostile work environment sexual harassment does not bar the evidence from also being considered under a separate claim of retaliation. The same evidence may be used in assessing the sufficiency of both claims.

f you have experienced sexual harassment in the Boston area, contact us today for a free consultation. (978) 228-2262

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